From Casetext: Smarter Legal Research

Julie v. City of N.Y

Appellate Division of the Supreme Court of New York, Second Department
Apr 8, 2008
50 A.D.3d 794 (N.Y. App. Div. 2008)

Opinion

No. 2007-04817.

April 8, 2008.

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the City of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated March 29, 2007, as granted the petition with respect to the infant petitioner.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for appellants. Parker Waichman Alonso, LLP (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III] of counsel), for respondents.

Before: Rivera, J.P., Ritter, Carni and Leventhal, JJ.


Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the petition for leave to serve a late notice of claim is denied in its entirety

The infant petitioner allegedly was sexually assaulted by a 12-year-old boy while a resident at a New York City shelter. The infant petitioner and his mother commenced this proceeding for leave to serve a late notice of claim.

The petitioners alleged that the City of New York was negligent in the operation, management, control, and supervision of the shelter. The Supreme Court granted the petition with regard to the infant petitioner. We reverse.

"In determining whether to grant an application for leave to serve a late notice of claim, a court should consider, inter alia, (1) whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, (2) whether the claimant is an infant or physically or mentally incapacitated, (3) whether the claimant demonstrated a reasonable excuse for the delay in serving a notice of claim, and (4) whether the delay would substantially prejudice the municipality in maintaining its defense on the merits ( see General Municipal Law § 50-e; Matter of Narcisse v Incorporated Vil. of Cent. Islip, 36 AD3d 920; Nardi v County of Westchester, 18 AD3d 521, 522)" ( Matter of Corvera v Nassau County Health Care Corp., 38 AD3d 775, 776).

Here, the petitioners did not establish that the City had knowledge of the essential facts underlying the claim that it was negligent in the operation, maintenance, control, and supervision of the shelter. Knowledge of the incident alone, without more, is insufficient ( see Weber v County of Suffolk, 208 AD2d 527, 528).

Moreover, the petitioners failed to offer a reasonable excuse for failing to serve a timely notice of claim or for the delay in moving for leave to serve a late notice of claim. The statements of the infant petitioner's mother that she was consumed by the criminal matter and the well being of her son were conclusory and were not supported by any evidence ( see Matter of Flores v County of Nassau, 8 AD3d 377, 378).

The petitioners did not establish a connection between the infancy and the failure to timely serve a notice of claim. Infancy alone is insufficient ( see Williams v Nassau County Med. Ctr., 6 NY3d 531, 538).

Finally, the petitioners did not meet their burden of establishing that the City would not be prejudiced in the preparation of its defense on the merits ( see Jordan v City of New York, 41 AD3d 658).


Summaries of

Julie v. City of N.Y

Appellate Division of the Supreme Court of New York, Second Department
Apr 8, 2008
50 A.D.3d 794 (N.Y. App. Div. 2008)
Case details for

Julie v. City of N.Y

Case Details

Full title:In the Matter of JULIE F. et al., Respondents, v. CITY OF NEW YORK et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 8, 2008

Citations

50 A.D.3d 794 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 3215
855 N.Y.S.2d 622

Citing Cases

Palisay v. City of New York

tion received actual notice of the essential facts constituting the claim within 90 days after the claim…

Keyes v. City of New York

Furthermore, the petitioners failed to allege that the respondents were made aware of any personal injury to…